- 1 - HC-KAR NC: 2025:KHC-K:5100 CRL.A No. 200156 of 2024 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 28TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE S RACHAIAH CRIMINAL APPEAL NO. 200156 OF 2024 (374(Cr.PC)/415(BNSS)) BETWEEN FAHIM PATEL S/O KHAMRODDHIN AGE 23 YEARS OCC: A/C REPAIR MECHANIC R/O. KEMBAVI DISTRICT YADAGIR NOW NEAR CHUNNA BATTI DIST KALABURAGI ... APPELLANT (BY SRI RAJESH DODDAMANI, ADVOCATE) AND 1. THE STATE OF KARNATAKA BY ROZA POLICE STATION DIST KALABURAGI REPRESENTED BY ASPP HIGH COURT OF KARNATAKA AT KALABURAGI BENCH Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC-K:5100 CRL.A No. 200156 of 2024 2. NIKHAT SULTANA W/O LATE SYED MOHIUDDIN AGE 50 YEARS OCC: HOUSEWIFE RESIDENT OF MAHIBOOB NAGAR KALABURAGI …RESPONDENTS (BY SRI JAMADAR SHAHABUDDIN, HCGP FOR R1; R2 SERVED) THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CR.P.C., PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE JUDGMENT AND ORDER DATED 29-03-2023 PASSED IN SC (POCSO) NO.31/2012 (ARISING OUT OF CRIME NO.14/2022 OF ROZA PS) BY THE COURT OF ADDL. DISTRICT AND SESSIONS JUDGE AND FTSC-I (POCSO) AT KALABURAGI, FURTHER TO ACQUIT THE ACCUSED/ APPELLANT AND ETC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 04.04.2025 BEFORE THE KALABURAGI BENCH AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE S RACHAIAH - 3 - HC-KAR NC: 2025:KHC-K:5100 CRL.A No. 200156 of 2024 CAV JUDGMENT (PER: HON'BLE MR. JUSTICE S RACHAIAH) 1. This appeal has been filed by the appellant, being aggrieved by the judgment of conviction dated 29.03.2023 and order on sentence dated 05.04.2023 in Spl. C. (POCSO) No.31/2022 on the file of the Additional District and Sessions Judge, FTSC-I (POCSO), Kalaburagi, wherein the accused has been found guilty and convicted for the offences punishable under Sections 506, 376(2)(f) r/w Section 376(3) of Indian Penal Code (for short ‘IPC’) and Sections 6 and 12 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’). Factual matrix of the case are as under: 2. The case of the prosecution is that, on 05.02.2022, the complainant lodged a complaint stating that she had 4 sons and 4 daughters. Her husband died long ago. Her third daughter was given in marriage to the accused one year back, who is the resident of Kembhavi village. After the marriage, the accused was residing at Chunna Bhatti in Khan compound, in a rented house at Kalaburagi. The - 4 - HC-KAR NC: 2025:KHC-K:5100 CRL.A No. 200156 of 2024 accused used to visit the house of the complainant, where the complainant and her children were residing along with the victim. 3. It is further stated that, the victim is the 7th daughter of the complainant and she was studying in 8th Standard. On 07.11.2021, at about 11.30 a.m., when the complainant came to the house, the victim was not found in the house, hence, she asked C.W.9, who is the wife of the accused and daughter of the complainant, about the whereabouts of the victim. Thereafter, both the complainant and C.W.9 started searching for the victim. As they could not get the whereabouts of the victim, the complainant decided to lodge a complaint. However, on 08.11.2021, at about 12.30 p.m., the victim came to the house. The complainant enquired with the victim. On enquiry, the victim told that, on 07.11.2021, at about 11.30 a.m., the accused had come to the house and told the victim that her mother was not keeping well and she had instructed the accused to bring the victim along with him. As such, the accused took her towards Santranswadi and took her into the building, which was - 5 - HC-KAR NC: 2025:KHC-K:5100 CRL.A No. 200156 of 2024 under construction. In the said building, the accused gave a life threat to the victim and committed sexual assault on her and stayed with her whole night. On 08.11.2021, in the morning, he took the victim towards her house and left her near the house and went away by giving life threat that she should not disclose the incident to her family members or anybody. When the accused was not seen even after several months, a complaint came to be registered by the complainant before the jurisdictional police. The jurisdictional police have conducted investigation and submitted charge sheet. 4. To prove the case of the prosecution, the prosecution, in all, examined 20 witnesses as PWs.1 to 20 and got marked 31 documents as per Exs.P1 to P31 and also identified 4 material objects as M.Os.1 to 4. The Trial Court, after considering the evidence on record, convicted the accused for the above mentioned offences. 5. Heard Sri Rajesh Doddamani, learned counsel for the appellant and Sri Jamadar Shahabuddin, learned High Court Government Pleader for respondent No.1. - 6 - HC-KAR NC: 2025:KHC-K:5100 CRL.A No. 200156 of 2024 6. It is the submission of the learned counsel for the appellant that the judgment of conviction passed by the Trial Court is erroneous and the same deserves to be set aside. 7. It is further submitted that the Trial Court has not considered the evidence properly and arrived at a conclusion that the appellant has committed an offence, which is erroneous and untenable under law. 8. The Trial Court has failed to take into consideration that there is an inordinate delay of three months in lodging the complaint against the accused, which is fatal to the case of the prosecution. The said aspect ought to have been considered by the Trial Court while appreciating the facts and circumstances of the case. 9. It is further submitted that even though the prosecution has failed to establish the occurrence of the offence, the Trial Court has failed to consider the same. As per the report issued by P.W.7, who happens to be the Doctor, - 7 - HC-KAR NC: 2025:KHC-K:5100 CRL.A No. 200156 of 2024 vide Ex.P7, would indicate that there was no external injury on the victim, hymen was torn, old and healed. 10. It is further submitted that, the cross-examination of P.W.1 was taken as ‘nil’ and an application was filed under Section 311 of the Code of Criminal Procedure for recalling the witness for cross-examination. The same was rejected by the Trial Court. There are material discrepancies in the statement given by P.W.1. In spite of not giving an opportunity to conduct cross-examination of PW1, the Trial Court recorded the conviction, which is unsustainable and the same is liable to be set aside. Making such submissions, learned counsel for the appellant prays to allow the appeal. 11. Per contra learned High Court Government pleader for respondent No.1 vehemently justified the judgment of conviction passed by the Trial Court and he further submitted that the evidence of PWs.2 and 6 are consistent that the appellant being the husband of P.W.6, had visited the house of P.W.2 on the pretext that P.W.2 - 8 - HC-KAR NC: 2025:KHC-K:5100 CRL.A No. 200156 of 2024 was suffering from ill-health and she needs the victim to be present along with her. Under such pretext, he had taken the victim along with him and had committed sexual assault on the victim, who is a minor. The act of sexual assault committed by the accused has been corroborated by the medical evidence as per Ex.P7. P.W.7 -Doctor who conducted examination of the victim, had stated that the victim had undergone sexual assault. Hence, the Trial Court has rightly convicted the accused, which requires no interference. Making such submissions, learned High Court Government Pleader for respondent No.1 prays to dismiss the appeal. 12. Having heard learned counsel for the respective parties and also perused the findings of the Trial Court in recording the conviction, it appears from the record that PW1, who is aged about 14 years and being a victim of the case, has stated in her evidence before the Court that she was studying in 9th Standard. P.W.6, who is her sister, married the accused 1½ year ago. After the marriage, the accused used to visit her house often. He - 9 - HC-KAR NC: 2025:KHC-K:5100 CRL.A No. 200156 of 2024 was touching her inappropriately. On 07.11.2021, her mother - P.W.2 was not feeling well and she had gone out of the house. The accused, around 11.30 a.m., visited the house and instructed the victim that her mother wanted the victim to stay with her in the hospital and he took her along with him. 13. However, instead of taking the victim to the hospital, he took her to the dargah, where both stayed together till 06.30 p.m. Thereafter, both were wandering in and around the city and again, he took the victim on the terrace of the building of Dargah and he is stated to have committed sexual assault on her. After the incident, the victim was crying and stayed along with him whole night. 14. On the following day, at about 08.00 a.m., he left her near Dargah and went away. When she went to the house, her mother P.W.2 enquired as to where she had been yesterday. The victim had narrated the incident to her mother. Thereafter, the complainant lodged a complaint against the accused, who is her son-in-law, as - 10 - HC-KAR NC: 2025:KHC-K:5100 CRL.A No. 200156 of 2024 they could not trace his whereabouts even after passing of two to three months from the date of incident. 15. P.W.2 also deposed as per the version stated in the complaint at Ex.P2. PW6, who is the wife of the accused, had also stated that the accused had taken the victim along with him on the pretext that her mother had requested the accused to bring the victim to stay with her. P.W.7 – Doctor, who conducted the examination and submitted her report as per Exs.P8 and P9 respectively, opined that “I found no external injury on the victim, hymen was torn, old and healed. As per the Radiologist and Dentist report, the age of the victim is less than 18 years”. Having considered this aspect, the Trial Court has recorded the conviction. 16. Now, it is relevant to discuss whether the findings of the Trial Court are proper or not. As per the averments of the complaint, the incident had taken place on 07.11.2021, a complaint came to be registered on 05.02.2022 and the victim had been subjected to medical - 11 - HC-KAR NC: 2025:KHC-K:5100 CRL.A No. 200156 of 2024 examination on 06.02.2022. The delay in lodging the complaint and also delay in conducting the examination of the victim certainly would be fatal to the case of the prosecution. The said aspect ought to have been considered by the Trial Court while analyzing the evidence. Moreover, the appellant had married the daughter of the complainant, who is examined as P.W.6. If at all if the incident of sexual assault had taken place, they should have lodged a complaint at the earliest in order to get the medical test done. Filing the complaint belatedly, after the lapse of three to four months, would certainly gives the impression that it is a false allegation made against the appellant in order to pressurize him to stay with P.W.6, who is his wife. 17. The evidence of P.W.1 would indicate that, there are lot of inconsistencies in her evidence regarding the place of incident and also the manner in which she had accompanied her brother-in-law, who is appellant / accused in this case. - 12 - HC-KAR NC: 2025:KHC-K:5100 CRL.A No. 200156 of 2024 18. Merely because the victim made a statement before the Magistrate and also deposed in the Court about the incident, that itself is not sufficient to hold that the accused had committed the offence of sexual assault against the minor girl. Moreover, in this case, none of the independent witnesses have stated that, both the appellant and the victim were present near the dargah and they had seen them together as on the date of the alleged incident. Such being the fact, recording the conviction by believing the evidence of interested witnesses, in my considered view, is not proper and appropriate. Hence, the said conviction is liable to be set aside. 19. Hence I proceed to pass the following:- ORDER i) The Criminal Appeal is allowed. ii) The judgment of conviction dated 29.03.2023 and order on sentence dated 05.04.2023 in Spl. C. (POCSO) No.31/2022 on the file of the - 13 - HC-KAR NC: 2025:KHC-K:5100 CRL.A No. 200156 of 2024 Additional District and Sessions Judge, FTSC-I (POCSO), Kalaburagi, is set aside. iii) The accused is acquitted for the offences punishable under Sections 506, 376(2)(f) r/w Section 376(3) of the Indian Penal Code and Sections 6 and 12 of the Protection of Children from Sexual Offences Act, 2012. iv) The Registry is directed to communicate this order to the concerned jail authority forthwith. v) Bail bonds executed, if any, stand cancelled. vi) In view of disposal of main appeal, pending application, if any, stands disposed of. Sd/- (S RACHAIAH) JUDGE BSS List No.: 19 Sl No.: 2